Owens v. Old Wisconsin Sausage Co.

Appeal
from the United States District Court for the Eastern
District of Wisconsin. No. l:15-cv-00424-WCG -
William C. Griesbach, Chief Judge.

Before
WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

ROVNER, CIRCUIT JUDGE.

Jamie
Owens worked as an employee of Old Wisconsin Sausage Company
(Old Wisconsin) from June 2011 until her termination in April
2012. She filed suit against Old Wisconsin alleging
employment discrimina- tion in that termination, including
discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., as well as a claim of retaliation under the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). The
district court granted summary judgment in favor of Old
Wisconsin on all claims, and Owens now appeals that judgment
to this court.

Owens
was hired as the manager of the Human Resources
("HR") Department, and was one of eight department
managers at Old Wisconsin. She previously had worked as HR
Manager at Lakeside Foods. Owens was the only female manager
at Old Wisconsin, and reported to Karen Noble, the Vice
President of HR at the corporate level, and Steve Harrison,
the Vice President and General Manager. Owens was hired as a
replacement for a male HR manager, Jeff Thiel. During her
training, Thiel told Owens that during his employment at Old
Wisconsin there tended to be a "boys club" which
Owens understood to refer to some managers doing things their
own way and excluding Thiel and the HR department from the
decision-making process. Thiel also indicated that Old
Wisconsin had hired Owens because she was female and that
Noble believed that bringing in a female would help to evolve
the culture of the company. The managers at Old Wisconsin
were classified as either "Manager I" with a bonus
potential of 15%, or "Manager II" with a 10% bonus
potential. During her 10-month stint at Old Wisconsin, Owens
was classified as a Manager II and her salary was the second
lowest of the managers there.

While
Owens was the HR manager, Matt Kobussen applied for an open
position as a retail store supervisor at Old Wiscon- sin. He
had similarly applied for a position and had been hired at
Lakeside Foods when Owens was the human resources manager
there. Owens was involved in the interview process at Old
Wisconsin but did not disclose that she and Kobussen were in
the midst of a six-year relationship. Although Owens denied
in the district court that she was living with Kobussen at
the time he was interviewed and hired in 2011, the district
court noted that Owens had testified under oath in a separate
court proceeding in 2014 that she had lived with Kobussen
from 2010 until "almost 2012" and had raised his
son for five years. In a small claims court complaint which
she stated under oath was true, she referred to her
relationship with Kobussen as a 6-year relationship. The
court determined that those statements should be taken as
true under the doctrine of judicial estoppel, holding that
Owens cannot attempt to prevail in those cases by arguing
that she was in a relationship with Kobussen during that time
period, and now seek relief in this case by arguing that she
was not. Owens raises no legal attack on appeal to that
judicial estoppel determination, and accordingly we will
assume for this appeal that she was in fact in a long-term
relationship with Kobussen at the time that he applied for a
position at Old Wisconsin.

Owens
discussed with Kobussen who would be his supervisor and other
details of the position before he applied, and along with
another manager Owens conducted Kobussen's first
interview. She was not present for his second interview, but
in conjunction with two other managers she participated in
the decision to hire him. In September and early October of
2011, Owens was assigned supervisory responsibility for the
retail store, which placed Kobussen directly under her
supervi- sion. She did not reveal to her employer her
relationship with Kobussen at any time.

Tammy
DeZwarte, a friend of Owens since high school who was in
Owens' wedding, followed a similar path to Old Wisconsin
as Kobussen. She was hired at Lakeside Foods when Owens was
HR manager there, and hired at Old Wisconsin during
Owens' tenure as HR manager at that company. Some
employees complained of preferential treatment by Owens
regarding DeZwarte, and when Owens was questioned as to that
relationship, she described DeZwarte as an acquaintance.

In
November 2011, three different employees complained to Chuck
Pf rang, the plant manager, that Owens and Kobussen were in a
relationship and that there was a conflict of interest
because Owens was involved in hiring Kobussen and was now his
supervisor. Old Wisconsin had no policy prohibiting
inter-employee dating, but had an informal policy to question
supervisors in relationships with subordinates in order to
avoid conflicts of interest. The policy was applied to both
female and male supervisors in such relationships. Pursuant
to that informal policy, once management was informed of a
relationship between a supervisor and a subordinate, they
would discuss the matter with the supervisor to learn the
details of the relationship, and would take appropriate steps
such as apprising the supervisor of problems which the
relationship could cause in the workplace or altering the
supervisory relationship where appropriate. Following those
complaints by the employees, both Kobussen and Owens were
asked whether they were in a relationship. Owens met with
Harrison and Pfrang on November 28, 2011 to discuss the
relationship rumors, and they informed Owens of the concerns
raised by the three employees. At that meeting, Owens
adamantly denied that she was in a relationship with
Kobussen. When further questioned as to whether she had ever
been in a prior relationship with Kobussen, Owens stated,
"I'm not answering this, this is borderline sexual
harassment." At that point, Harrison chose to embark
upon a performance review of sorts, although the promised
formal performance reviews had not been provided previously.
He stated that her performance had been a "C" at
best, characterizing her performance as mediocre and as
failing to fulfill the promise of the skill set identified on
her resume and in her interview.

On
approximately December 19, 2011, Harrison informed Owens that
several employees had expressed concern about Kobussen's
work performance and Owens' objectivity in addressing
those performance problems, including that he showed poor
leadership, did not work Saturdays, did not stock shelves,
had personal hygiene issues, took numerous cigarette breaks
during the day, came in late, and took an unpaid vacation day
on a very busy store day. At that meeting, Owens again denied
knowing Kobussen outside work.

Kobussen
was also questioned by Pfrang regarding his relationship with
Owens but he deflected the question, responding that he did
not question Pfrang about Pfrang's spousal relationship.
Although Kobussen remained employed with Old Wisconsin, Owens
was terminated. The basis of the termination is the subject
of dispute. During a quarterly meeting on February 9, 2012,
Noble, Harrison and Pfrang initially determined that Owens
was not a proper fit for the human resources position, and
noted several problems observed by management with her
professionalism and her ability to perform the duties of the
position. The next day, Safety Manager David Streeter emailed
Noble detailing his concerns with her abilities in Owens'
position, noting her lack of the necessary knowledge of HR
and of safety issues to adequately do her job, and her
"rough" personality that made employees hesitant to
approach her with issues. Harrison decided to terminate
Owens, but upon learning that Owens' daughter was sick,
postponed that decision and ultimately terminated her on
April 13, 2012. The person hired to replace Owens was also
female.

After
the decision to terminate Owens, Old Wisconsin produced a
memo that indicates its reasons for terminating Owens'
employment, including that: false or misleading statements
were made related to hiring practices and friendships that
may have influenced hiring decisions; management was
approached by employees with concerns with Owens'
integrity and a lack of trust in HR actions; Owens often made
statements of "fact" based on inadequate
information, leading to additional investigation which
changed the basis for the decision; Owens did not support
many company policies and had commented on such to other
employees; Owens had problems setting correct priorities and
often created a crisis situation when calm reflection was
required; and Owens had not developed interactive
relationships with employees and was not approachable. Owens,
however, argues that the memo with its reasons was never
supplied to her at the time of her termination, and that the
reason she was terminated was that she refused to answer
questions about any relationship she had with Kobussen.

Owens
alleges that her termination constituted unlawful
discrimination and retaliation in violation of Title VII, and
that it constituted improper retaliation under the FLSA.
Owens points to a litany of additional actions by ...

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